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the consideration and judgment of A. B. D., who was then one of the justices of the peace of the town of which judgment was duly given or made 1 by said justice, the said plaintiff recovered of the said defendant the sum of, &c., (proceed as in the foregoing form to the end. If the suit should be brought before the expiration of the five years, the complaint should show that the justice is dead, or has resigned, or removed from the county, or incapable, as provided by section 71 of the Code].
On policy of marine insurance; preformance of conditions precedent pleaded generally, pursuant to section 162, Code.
SUPREME COURT-ERIE COUNTY.
Henry E. Mussey
agt. The Astor Mutual Insurance Company.
The plaintiff, Henry E. Mussey, complains of The Astor Mutual Insurance Company, which the plaintiff alleges is a corporation created by and under the laws of the State of New-York, defendants.
The allegation must be substantially, if not literally, in the very language of the Code, that the “judgment was duly given or made," otherwise the facts showing the jurisdiction of the justice must be pleaded. An allegation that, on the day of — judgment was entered in said action by said justice, &c., has been held to be insufficient. (Hunt and others v. Dutcher, 13 How., 539.)
See another precedent, in which a justice's judgment is pleaded, ante, No. 20, p. 114. Also, a precedent in which a surrogate's decree is pleaded, No. 24, Part III., p. 406.
That heretofore, on the 4th day of September, in the year 1852, the defendants executed and delivered to the plaintiff a policy of insurance in the words and figures following, that is to say: [ Or a copy of which is annexed to and forms part of this complaint, and then set forth copy verbatim.]
That the said plaintiff, at the time of the execution and delivery of said policy, was the owner of the said vessel described and named in the said policy of insurance, and continued to be such owner of said vessel until and at the time of damage and loss thereof, hereinafter mentioned.
And the said plaintiff further saith, that after the making and delivery of the said policy of insurance, and on or about the 1st day of November, in the year 1852, aforesaid, and while the said vessel was prosecuting the freighting business aforesaid, mentioned in the said policy of insurance, the said vessel was, by the perils or damages of the sea, or navigation upon Lake Michigan, by the violence of the winds and waves, bilged, broken and destroyed, and the said vessel did then and there become, and was wholly lost to him, the said plaintiff; of all which said premises the said defendant afterwards, to wit, on the day and year last aforesaid, had notice.
And the said plaintiff further saith, that after the making and delivery of the said policy of insurance, in manner and form aforesaid, he, the said plaintiff, duly performed all the conditions in the said policy on his part to be performed.?
1 It is not necessary to set out the policy in full, but for greater caution it may be done if the pleader prefer. See, post, No. 52, for a precedent on a policy of insurance against fire, and No. 53, on a policy to insure a vessel, in which the material parts of the contract only are alleged.
2 This is precisely in the phraseology used by the Code, section 162. It should in all cases, where this general form of pleading is adopted, Wherefore the plaintiff demands judgment against the said defendants, to the said sum of $5,500, with the interest thereon from the said 1st day of November, in the
Title of the Cause.
The plaintiff, A. B., an inhabitant of the town of Athens, in Greene county, complains of the defendant, and alleges, on his information and belief, that on the day of — the defendant set a stationary fish net in the creek commonly called the Murderer’s creek, in the town of Athens, in the county of Greene, that is to say, in a portion of said creek running through said town, and contrary to the provisions of an act of the Legislature of the State of New York, entitled “An act to prevent the destruction of fish in Murderer's creek, in the town of Athens,” passed March 13th, A. D. 1838.
That by reason thereof the defendant is indebted to the
be strictly followed. See an example of a slight variance from this form of expression, in No. 30, ante, p. 421. The court might, no doubt, hold that the precise language of the statute should be used in this general mode of pleading the performance of conditions precedent, for the same reasons given in the case of pleading a judgment of a court of limited jurisdiction. (Hunt v. Dutcher, 13 How., 539; see, also, for this form of pleading condition precedent, No. 21, p. 401, and No. 23, p. 409.)
plaintiff' in the penalty and sum of $10, one-half for himself and one-half for the overseers of the poor of said town, for the use of the poor, and an action has accrued to the plaintiff to recover the same.
Wherefore the plaintiff demands judgment against the defendant for the said sum, and costs.?
( 9.) MISCELLANEOUS CASES OF ACTIONS FOR BREACH OF CON
TRACT, WRITTEN OR PAROL.
For breach of contract for the sale of railroad stock.
SUPERIOR COURT-CITY OF NEW-YORK.
The abovenamed plaintiff complains :
That the abovenamed defendant, on the 27th day of September, 1851, at the city of New York, in considera
1 In pleading a private statute or a right derived therefrom, it shall be sufficient to refer to such statute by its title and the day of its passage, and the court shall thereupon take judicial notice thereof. (Code, $ 163.)
% The above precedent is precisely like that in the case of The People v. Bennett (5 Abbott, 384), which was held good by the court, notwithstanding the decision in Morehouse v. Crilley (8 How., 431). The provisions of the Revised Statutes, it was said (per BIRDSEYE, J.), relative to the forms of declarations in actions for statute penalties (2 Rev. Stat., 282, $ 10), are not abrogated by the Code ; and the method of declaring, authorized by them, is still proper.
tion of the contracting and purchase by the plaintiff hereinafter mentioned, contracted with the plaintiff to sell, and sold to the plaintiff, one hundred shares of the capital stock of the New-York and Erie Railroad Company, at the price of $72 for each share thereof, with interest at the rate of six per cent per annum thereafter, the stock to be delivered, and the prices and interest to be paid within sixty days thereafter, at the option of the defendant; and the plaintiff, at the same time, in consideration of the aforesaid contracting and sale by the defendant, contracted with the defendant to purchase, and purchased from the defendant, the said stock, at the prices and on the terms aforesaid ; that the plaintiff, at all times within said sixty days, was ready and willing to receive the said stock and pay therefor, pursuant to said purchase, but the defendant did not deliver the same; that the said stock at the end of the said sixty days was, and thence hitherto has been and still is, worth a much greater sum than the said price and interest, and the plaintiff has sustained great loss and damages by the said default of the defendant, and that the plaintiff has duly performed all the conditions precedent of the contract on his part.?
Wherefore the plaintiff demands judgment against the defendant for $5,000 damages, besides costs of action.
LITCHFIELD & TRACY,
1 As to pleading a consideration in an action on contract, and when and in what cases the complaint upon its face must show a consideration, see Pleadings, 216, 222,
2 The foregoing complaint contained another similar cause of action, which is here omitted.